Porter v. Casualty Co. of America

120 N.Y.S. 71 | N.Y. App. Term. | 1909

Giegerich, J.

The action was brought to recov.er the sum of $150 for a balance of six weeks’ indemnity of $25 per week, claimed to have accrued under a policy of insurance covering sickness and accident, which six weeks’ indemnity accrued after the commencement of a former action in which indemnity for a period of twenty weeks had -been recovered.

The policy is not in evidence, but the provisions thereof set forth in paragraph II of the complaint are admitted by the answer. According to such provisions the defendant was to pay the plaintiff a “weekly indemnity” of twenty-five dollars, in the event of disability of the kind specified, for a period of such disability not exceeding twenty-six weeks.

On February 20, 1908, the plaintiff brought an action in the Supreme Court for the sum of $500, claimed to be due for a period of disability of exactly twenty weeks beginning September 24, 1901, and later recovered judgment for the amount, which the defendant paid.

The court in this case has decided that such former recovery is a bar to this action. We cannot agree with that conclusion. The defendant bound itself to make a “weekly indemnity ” of twenty-five dollars. This standing alone may fairly be construed as meaning that the amount of twenty-five dollars should be due and payable each week, thus bringing the case within the general proposition that each default in the payment of money falling due upon a contract may be the subject of an independent action, provided it is brought before the next instalment becomes due, and with the further limitation that each action should include every instalment due when it is commenced, unless a suit is pending at the time for the recovery thereof. Lorillard v. Clyde, 122 N. Y. 41, 45. In this view and under the above rule the former recovery is not a bar to this action.

When the entire policy is before the court, there may be discovered other provisions inconsistent with the construction we now place upon the portion of it before us or that may constitute a defense to the action on the ground that it was not begun soon enough; hut, as the policy was not placed in evidence, such points cannot be determined on this appeal.

The judgment must therefore he reversed, and a new trial ordered, with costs to the appellant to abide the event.

Goff and Lehman, JJ., concur.

Judgment reversed, and new trial ordered, with costs to • appellant to abide event.